It seems almost silly to argue, as the University of the Incarnate Word does, that UIW’s police force is a governmental body. Yet, that is the very argument the school made to the Texas Supreme Court yesterday. I previously wrote about this appeal here and here. UIW seeks the status of “qualified immunity.” With the sort of qualified immunity of a governmental entity, the lawsuit by the family of Cameron Redus would be dismissed. Young Mr. Redus was shot and killed by UIW police in 2013. He was killed by a UIW police officer.

The district court and the Fourth Court of Appeals sided with the Redus family. They found that UIW was not an arm of the government. But, the reality of the Texas Supreme Court is that no matter how silly the argument is, if that argument is made by the employer or by the defendant in a claim for damages, that argument might win. The Texas Supreme Court is remarkably biased in favor of the defendant, these days.

The heart of the argument appears not to have changed. UIW is still arguing that since their small police force must be licensed by the state, then it must be a governmental body. The attorney did specific that the school only argues the police force is a governmental body, not UIW in its entirety. See San Antonio Express Newsreport. . . . Well, ok, glad that is cleared up. But, still, if state licensing makes a private sector entity public, then every licensed barber is equally an arm of the state government.

I written before about the complicated decisions regarding whether Title VII prohibits discrimination based on sexual orientation. Ever since the Supreme Court’s decision in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), courts have been grappling with same sex harassment. Does Title VII prohibit discrimination based on sex or not? See my post here and here. The challenge for all judges is that Congress has considered amending Title VII to add protections based on sexual orientation, but ultimately has chosen not to do so. So, the court in Oncale tried to walk a fine line, determining that Title VII did prohibit harassment based on gender stereotypes, but not based on sexual orientation. So, as in Oncale, male on male harassment does violate Title VII so long as they harasser is not motivated by sexual interest.

But, the Seventh Circuit in Chicago appears to be prepared to upend that interpretation of Title VII. In Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir.), many members of the enbanc panel expressed misgivings about the current state of the law. Even the more conservative members of the panel shared concerns with precedent. See Slate post here about that en banc hearing. Title VII states plainly that it prohibits discrimination based on sex. If discrimination is based on sexual orientation, how is that not discrimination based on sex? Judges, left of center or right of center are inherently conservative. They much prefer to interpret the written law as it is written. It is increasingly difficult to ignore the wording of Title VII. It does, after all, prohibit discrimination based on sex.

The EEOC has already issued opinions supporting the view that Title VII prohibits discrimination based on sexual orientation. Courts are generally not far behind the EEOC. Even the well respected Judge Posner pointed out that statutory interpretation is not frozen in time. The Civil Rights Act of 1964, what we know as Title VII, was after all, passed in 1964. That was some time ago. Things have changed, pointed out Judge Posner. Judge Bauer, 90 years old, joined with Judge Posner to laugh at the outdated notion that lesbian women are a reaction to ugly men. You know when the judges are joking, the case is really already decided.

As noted at the end of the hearing, the Seventh Circuit is not a particularly liberal circuit. But, its judges tend to be thoughtful judges dedicated to a high standard of judicial scholarship. If they see the law certain way, one can expect them to adhere to their principles.

Donald Trump advocated torture during his campaign. He even advocated targeting the families of alleged terrorists. “Task & Purpose,” a nice veterans website, discusses the legal ramifications for soldiers during a Trump administration. As the post explains, Mr. Trump argued in favor of water boarding “and a helluva lot worse than waterboarding” during the campaign. Recently, he walked his comments back a bit. But, then Mike Pence, the new Vice-President, said the administration would never discuss what it would never do. So, torture and unlawful killing may still be on the agenda. The post points out that the USA did not agree to the international agreement that created the International Criminal Court. So, the only enforcement power for a soldier refusing to obey an unlawful order would be the same executive branch that would order the torture. US military members are not subject to the International Criminal Court.

The Trump administration could redefine noncombatant to include families of terrorists. The 2016 National Defense Authorization Act limits interrogations to practices found in the Army Field Manual. But, the administration could allow for “extraordinary rendition,” as the Bush administration did. That is, the Trump administration could out-source torture. But, some of these directive to interrogate with extreme methods could be directed toward the ordinary soldier. Those sorts of orders are rarely written. The average soldier might have the opportunity to consult with a JAG lawyer. One could expect the military chain-of-command to support whatever legal cover the White House offers. During the Bush Administration, the White House Legal Counsel wrote a memo authorizing torture. Most JAG lawyers would surely defer to legal opinions from some other entity. So, even if a practice were considered illegal right up to the day of some memo, it would then magically be considered lawful afterward.

I have to add as an aside, however, that many JAG lawyers were troubled by that White House memo. Many JAG lawyers would explain the difficulties involved in changing the definition of “torture” and provide pretty good counsel regarding any possible unlawful order.

One Navy nurse at Guantanamo Bay refused to force feed a detainee. Legal proceedings dragged on against him for two years before the medical community supported him. Then, the Navy dropped its investigation. Force feeding is not torture, but the incident indicates the sort of actions that one can expect for refusing an order sen as unlawful. As I have mentioned on this website before, military members are required to refuse unlawful orders. The question is is such an order unlawful if there is some sort of legal cover? The Task & Purpose post does not address how a soldier might ascertain whether a given order is unlawful or not. Instead, it recommends that members of the military understand the rule of engagement, any protocols regarding detainees, and pay attention to those Law of Armed Conflicts briefings we receive each year. This is serious business. No one wants to risk his/her career over an unlawful order. See Task & Purpose post here.

Arbitration of legal disputes has become so common that now it has even invaded the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). Navy Lt. Kevin Ziober filed suit against his former employer after it fired him. BLB Resources, Inc. fired him on his last day of work before just before he deployed to Afghanistan in 2012. Lt. Ziober was a Naval Reservist. Lt. Ziober filed suit. But, the employer, a real estate management company in California, invoked the arbitration agreement he had signed. See Military Times report here. The lieutenant argued before the Ninth Circuit that the history of the USERRA indicated that Congress had intended that the USERRA be exempt from arbitration. The Ninth Circuit Court of Appeals did not agree.

The plaintiff pointed to the clause in the USERRA that prohibits the waiver any right the consumer might have under the statute. But, replied the Ninth Circuit, the Supreme Court addressed essentially the same clause in the Credit Repair Organizations Act in CompuCredit Corp. v. Greenwood, 132 S.Ct. 665 (2012). In the CompuCredit case, the Supreme Court held that the Federal Arbitration Act merely provided a different forum. It did not waive any right to pursue a claim. The employee also argued that the courts afforded liberal interpretation for veterans. The court did not disagree, but in agreeing to arbitration, the veteran did not give up any rights. See decision here.

In dissent, Judge Watford, pointed out that the USERRA does not follow the provisions of the Credit Repair Organizations Act closely enough. The USERRA, he pointed out, prohibits any contract that would limit any right under the USERRA. The right to sue in federal court is one such right. Unlike the Age Discrimination in Employment Act and other statutes, the USERRA includes the right to sue and also includes a non-waiver provision. This is the only employment statute to be considered for arbitration that contains both a provision conferring the right to file a suit and a non-waiver provision.

As I have mentioned previously on this forum, the premise that arbitration is just another forum is false. At least one study has found institutional bias in favor of repeat players in the arbitral system. Employers will be repeat players, not employees. The right we give up in signing those agreements is the right to a system over which we have some degree of control. In theory, if a judge performs badly, we can vote him out or vote out of office. Or, we could vote out of the office the president who appointed that particular judge. But, in arbitration, we have no control over who becomes an arbitrator. We do not have a vote.

A group calling itself the National Policy Institute at a popular Washington, D.C. restaurant. The owner of Magliano’s Little Italy says he did not know the folks at the NPI would engage in Nazi style salutes. They also proclaimed “Hail Trump, hail our people, hail victory.” Ok. Well then.

See CBS news report. It is a strange sight to see Americans engaging in Nazi salutes with no trace of a smile in their faces.

The restaurant owner apologized, saying the group made the reservation under a different name. I think this presidency is going to be bumpy ride. Bigotry does not get any bigger than self-styled Nazis.

Well, Donald Trump has decided to settle the case against him and Trump University. That is wise. It would look very bad for him to have this going on while he is trying to get his government together. I previously wrote about that lawsuit here. He had no choice really. That he would settle is a significant turn. According to the New York State Attorney General, he would not even offer small amounts to settle before he was elected President.

He agreed to settle these claims for $25 million. Trial was set for Monday, Nov. 28. They settled ten days before trial. Mr. Trump said he rarely settle cases, because he believes that only encourages additional lawsuits against him. The settlement benefits some 7,000 class members. The trial would have lasted weeks. See AP news report here.

A few days later, Mr. Trump tweeted that he would have easily won the trial. He only settled because he needed to focus on organizing his government. Don’t they all say much the same.

Donald Trump and Trump University have been the defendants in a class action lawsuit for some six years, now. The trial was postponed from last Spring to Nov. 28, 2016. Bu, in the meantime, Mr. Trump campaigned and he made statements about the lawsuit. His lawyers tried to exclude those statements from the trial. Judge Curiel, the now well know Hispanic judge, said no, the lawyers must specify to which statement they are referring. A blanket request for all such statements will not work, said the judge. I previously wrote about Judge Curiel here.

That is right. In trials, context is everything. The judge would need to know which particular statement they are seeking to exclude before he could rule on the motion. See political dig website regarding this ruling. The judge did allow Mr. Trump to testify by video and allowed him to not appear at the trial. The trial is pending in San Diego. Since the election results, Mr. Trump’s lawyers have indicated they are interested in settling. I suspect they would offer a generous amount to avoid a trial at this sensitive time for Pres. Elect Trump.

Daniel Petrocelli, Mr. Trump’s lawyer, also asked to postpone the trial to January. He described Pres. Elect Trump’s tasks at the moment as “monumental.” But, the judge said he was not inclined to grant a delay. Apparently, Mr. Petrocelli has not yet filed a motion asking for a postponement. Because, the judge said he would consider such a motion but that he was not inclined to grant it. As a six year old case, it is very old, as lawsuits go.

Federal judges are required to submit a listing of their pending cases every month. It is much like a report card. The older the lawsuits are, the worse they look. So, federal judges generally feel some pressure to keep cases moving.

The political dig report suggests that Mr. Trump could be impeached if he is found to have committed fraud in the lawsuit. I myself am doubtful. To be impeached, he must be accused of “high crimes and misdemeanors.” As some of us learned in 1999, when Bill Clinton was impeached, “high crimes and misdemeanors” generally refers to criminal violations. The Trump University lawsuit is civil in nature.

When I was a young Company Commander, we had this lieutenant who was even younger than I was. He had been to Airborne school. He had his jump wings and he thought he was special. He disparaged Battalion staff the few times he dealt with them. He talked big about what he would do as Platoon Leader. We were training up for a rotation to the National Training Center. That was a big deal for any Infantry unit, but especially for a National Guard Infantry unit. We would be the second Guard unit ever to rotate through the NTC. During our train-up, we had active duty soldiers watching us and training us. The pressure to succeed was strong. One weekend, the training consisted of lane training by platoon. The three platoons in my company would take their turn going through a lane set up in the Louisiana woods attacking and seizing an objective. There would be smoke, grenade simulators, etc. It would look and sound very real.

As the platoon advanced, the brash, young lieutenant froze. He just flat froze. Like all of us at one time or another, he was suddenly seized with paralyzing fear as he realized he was in total control. Unlike when we practiced drills, the NCO’s were not running things. He was. And, he was too scared to speak and direct his some 30 soldiers. I had to step in just to keep the platoon advancing. The young lieutenant never did recover. He left our unit soon after.

I thought of that young officer when I read that Donald Trump visited with Pres. Obama yesterday and he said little. Gone was the braggadocio. Gone were the loud promises of victory and success. It is not easy being in charge. It is not easy being handed the keys to a 30 man Infantry platoon with smoke and explosions all around you. Assuming the keys to the White House are not any easier.

In the Band of Brothers book, 1Lt. Dyke was given the keys to an Infantry company. Like my young lieutenant, 1Lt. Dyke froze in the midst of his first attack. The movie portrayed him as confused and spouting incoherent instructions. But, in reality, he just froze in the midst of a complicated attack. While he sat there, his men were getting shot badly. The enormity of controlling people’s lives, even if just in training is just too much when you are not prepared. My young liuetant was too young. He was still in college. He was an early commissioned officer under a program unique to the Guard. He had not even been to the Officer Basic course, yet. Too much was expected of him. 1Lt. Dyke was a commissioned officer and was older. But, he had previously served on Regimental staff, which is much further back from the front. He was in charge of just a handful of men. When he came to Easy Company, he often disappeared. In combat a soldier can just walk off in the woods and hide. Usually, your superiors will find you and bring you back, or replace you. But, when you are the superior, you can get away with disappearing.

He did not bond with his men. He never chatted with them. He had no stake in their successes or failure. So, in the midst of an attack, he suddenly found himself in charge of 150 strangers and did not have the desire to deal with it. He just froze. He was not ready. He was not invested in his men. My young lieutenant never got to know his own soldiers, either. To him, they were just pawns on a chess board.

Donald Trump will get the hang of his new job. He is invested in some of us, perhaps not all of us. But, it will take time. He needs training and education. 1Lt. Dyke served honorably through the rest of the war in staff roles. He was apparently deemed not suited for a front line unit, again. My young lieutenant, I never heard from him. But, I am sure with time and military education, he did much better later. As for Pres. Elect Trump, I am sure he will get the hang of this new car, soon.

Yet another challenge to arbitration is found in the class action complaint against Uber, the ride sharing platform. The case is known as Meyer v. Kalanick and UberTechnologies, Inc., No. 15-CV-9796 (E.D. N.Y. 7/25/16). While the ruling on class action status will break new ground, the ruling on investigating the plaintiffs’ counsel breaks new ground of a different sort. In this matter, the defendant’s General Counsel was quite upset about the suit. He called the Chief Security Officer for the company and asked what they could learn about the plaintiffs and the plaintiffs’ counsel. The Chief then forward the email to Uber’s Director of Investigations. The Director responded simply by asking if this needed to be done in-house or out-sourced. The Director of Investigation was not troubled by the possible ethical issues of such an investigation. The Chief replied, just keep it under the radar. Uber then hired an outside investigator to look into the background of the plaintiffs and their counsel.

It is common for a defendant to investigate a plaintiff or a set of plaintiffs. It is quite unusual, so far as I know, to investigate the plaintiff’s attorney. Yet, that is what Uber did. The plaintiff law firm became aware of someone asking questions. The lawyer asked Uber’s lawyer if the company was investigating him. Uber’s lawyer denied it, at first. Later, the Uber attorney admitted they were investigating the Plaintiff’s attorney. The judge who was presiding over the case not happy. Within a week of learning about the investigation, he allowed the plaintiff law firm to depose the principals, the investigator and the Director of Investigations. The investigator misrepresented himself to acquaintances of the plaintiff and the attorney. He lied about who we was so he could ask questions about them. The investigation firm tried to cloak its investigation materials in work-product privilege. The court said no.

Uber tried to argue that its investigation was to make sure the plaintiff was not a safety threat to Mr. Kalanick. The judge was “profoundly” skeptical about that claim. The judge was concerned with the investigation of both the plaintiff and the plaintiff’s attorney. The investigation of the both persons went into everything from living arrangements, to family life to career prospects. The court pointed out there is a “crime-fraud” exception to the work product privilege and the attorney-client privilege. The deceptive nature of the investigation meant Uber engaged in fraudulent, if not criminal conduct. When investigating the attorney, the investigator claimed he was reviewing top “up and coming” labor lawyers or conducting real estate market research for a client. Regarding the plaintiff himself, the investigator claimed to be investigating environmental researchers. The plaintiff was a college professor.

The court pointed out that in acting for Uber, the private investigator was acting for the General Counsel. It does violate the code of ethics in New York , as in most states, for a lawyer to condone or employ deceptive practices in investigating a matter. The court added that litigation is by definition a truth-seeking endeavor. It would contradict this truth-seeking aspect to engage in deceptive practices. The private investigator firm tried to argue that it was not involved in the litigation. The judge did not take that argument seriously. So, the judge denied the motion of Uber and the private investigator firm to keep these investigation materials privileged.

As relief, the judge agreed that any information collected by the investigation could not be used during the lawsuit, and the court enjoined any further investigations of any persons involved in the lawsuit. The plaintiff did seek sanctions, but the parties resolved that issue in a private agreement. That probably means they agreed on some dollar value for the Plaintiff firm having to pursue this motion. But, in the end, the court bemoaned the dismal state of legal process that would lead to this sort of an investigation. As the court noted at the outset of its ruling:

“It is a sad day when, in response to the filing of a commercial lawsuit, a corporate defendant feels compelled to hire unlicensed private investigators to conduct secret personal background investigations of both the plaintiff and his counsel. It is sadder yet when these investigators flagrantly lie to friends and acquaintances of the plaintiff and his counsel in an (ultimately unsuccessful) attempt to obtain derogatory information about them.”

And, in the end, the investigator found nothing it could use. See the court’s ruling here.

The Waffle House, Inc. v. Williams, 313 S.W.3d 796 (Tex. 2010), decision was issued a few years ago. In that decision, the Texas Supreme Court decided that a lawsuit based on a tort claim of sexual assault was actually subsumed by the Texas Commission on Human Rights Act. I wrote about that decision here. That meant a claim for sexual assault was turned into one for sexual harassment under the TCHRA. Claims under the TCHRA are limited to $300,000 for emotional suffering type a damages and for punitive damages. That $3000,000 works for sexual harassment claims. But, that limit does not work well for sexual assault claims that involve severe trauma for females who have been abused or raped.

The TCHRA is the Texas version of Title VII. Texas is still one of the very few states to reach that result where sexual assault is somehow subsumed into sexual harassment. Like Title VII, a person complaining of a TCHRA type complaint would have to file her complaint with the EEOC. But, if she filed her suit as a personal injury or tort, then she could go straight to district court. She could skip the EEOC. There would be no caps on her damages, if she won her lawsuit.

A personal injury sexual harassment type lawsuit was pretty rare, even before the Waffle House decision. But, it allowed some women who might have missed the TCHRA deadline to still file suit. A TCHRA type complaint must be filed within 6 months (more or less depending on circumstances) of the incident. But, like many victims, some women are just too overwhelmed with losing her job or suffering some adverse action, or even more likely, they just have a hard time finding an employment law lawyer. So, some women would miss that six month deadline. In such cases, the personal injury sexual harassment was seen as a possible avenue, if a bit risky. The deadline for any personal injury claim in Texas is two years. So, a woman could miss the EEOC deadline and still have a legal option, if her case had personal injury type facts.

But, after Waffle House, that option ended. Now, the Texas Supreme Court re-visits that issue. In B.C. v. Steak ‘n Shake, No. 15-0404, the woman, identified as “B.C.” to protect her identity, was assaulted by a co-worker in the bathroom of a Steak ‘n Shake. As the dissent in Waffle House pointed out, what happens when the assault is just that, an assault and nothing more? In B.C., the attacker simply grabbed her and tried to force her to kiss him and touch his genitals. It was a one-time attack. It would be very hard to argue that was sexual harassment within the definition of the TCHRA. Every definition of sexual harassment requires overt acts over an extended period of time. Yet, the Waffle House decision did not allow for that variation in facts. It issued a broad rule that made little sense.

B.C. v. Steak ‘n Shake is now on appeal to the Texas Supreme Court. See Dallas Morning Newsreport. Oral arguments are set for Nov. 7, 2016.

The Waffle House decision made a silly distinction, that a sexual incident at work would always amount to sexual harassment. There are similarities between the two causes of action, but within the wide variety of the human experience, there are many variations. A blanket rule makes no sense. And, that is why so few states have reached that sort of result. In the lower court, the now Attorney General Ken Paxton defended Steak ‘N Shake. Somehow, that is not surprising.

Post navigation

About

Thomas J. Crane focuses on cases involving wrongful conduct by the employer. He has been practicing employment law for 20 years. He had his own law practice in San Antonio for many years prior to being called to active duty.